NLRB General Counsel Directs Regions to Pursue Full Remedies Against Employers
This month, National Labor Relations Board (NLRB) General Counsel (GC) Jennifer Abruzzo issued two GC memos providing guidance to Regional Offices concerning what remedies should be sought when an employer has violated the National Labor Relations Act (NLRA). Specifically, GC Abruzzho directs Regions to seek the “full panoply of remedies available” to ensure that victims of unlawful conduct are made whole. GC Memo 21-06 discusses remedies that Regions should request that Board include in any order finding an employer has violated the NLRA. GC Memo 21-07 addresses the remedies that Regions should include in settlement agreements.
Additional Remedies for Unlawful Terminations
- Consequential Damages: In addition to back pay and loss of benefits, Regions are directed to seek consequential damages “suffered as a direct and foreseeable result” of an employer’s unfair labor practices (the memo does not specify whether this principle applies to union unfair labor practices). Such damages include compensation for health care expenses, late-payment fees, or loss of a home or car suffered due to an unlawful termination.
- Front Pay: In cases where reinstatement may not be appropriate, the Region may request that the Board seek front pay.
Distribution and Reading of Notice to Employees
When the Board concludes that a charged party has violated the NLRA, it will order that the charged party post and/or distribute a Notice to Employees. Generally, the Notice states that the charged party will comply with its legal obligations and will refrain from specific conduct that violates the NLRA. GC Abruzzo directs the Regions to seek the following remedies that will broaden the dissemination of the Notice:
- Wider Distribution of Notice to Employees: The memo directs Regions to seek distribution of the notice through public forums, including social media and traditional media such as newspapers. Thus, Regions may seek remedies whereby employers are required to post the Notice to Employees on their Facebook page, Instagram feeds, Twitter accounts – or all of the above. Finally, GC Abruzzo directs Regions to seek company-wide postings or mailings (i.e., posting at every facility or mailing to all employees regardless of work location) in certain cases.
- Public Reading and Video Recording of Notice Reading: Regions will also request that employers be required to publicly read the Notice – or, alternatively, a Board agent read the Notice in the presence of supervisors. Where appropriate, union representatives may be permitted to attend the reading. Additionally, in certain cases, the Region may request that the Board order the employer to make a video recording of the Notice reading, and then distribute the reading to employees through electronic means.
- Extension of Notice Posting Period: GC Abruzzo further directs Regions to request extensions of the customary 60-day Notice-posting period where unfair labor practices have been “pervasive and occurred over a significant period of time.”
Unlawful Conduct During a Union Organizing Drive
- Increased Union Access to Employer Property: The GC notes several remedies where Regions can seek additional union access to employer property. First, an employer may be required to provide the union with “equal time” to address employees during so-called “captive audience” meetings regarding union representation that employees are required to attend during working time. Second, Regions could seek employee contact information from an employer to be provided to the union – such information is invaluable to union organizers, who will use such information to phone and visit employees the union seeks to represent. Finally, Regions may seek union access to employer bulletin boards.
- Union Organizing Costs: The GC states that Regions may require employers to reimburse unions for organizing costs incurred as a result of a re-run election, where an employer’s “sufficiently egregious” unlawful conduct required a previous election’s results to be set aside.
- Hiring an Employee of the Union’s Choice: If a discharged employee is unable (or unwilling?) to return to work, the Region will seek to require the employer to hire an employee of the union’s choice. Presumably, this could include a union salt whose primary purpose will be to advocate for unionization of the workplace.
Unlawful Conduct During Bargaining
GC Memo 21-06 sets forth remedies Regions should seek where it finds that an employer has failed to bargain in good faith, including:
- Bargaining Schedules: Employers would be required to bargain at least two times per week and for at least six hours per session until the parties reach an agreement or good-faith impasse.
- Bargaining Expenses: A charged party (i.e., the employer) would be required to reimburse the opposing party for expenses incurred for the entire period which the charged party failed to bargain in good faith.
- Protection Against Decertification: Regions will seek a 12-month “insulated period” from the date the employer begins complying with its bargaining obligations. During that period, a union’s status as bargaining representative may not be challenged (e.g., by a decertification petition).
- Training of Supervisors and Managers: Regions will seek orders requiring company supervisors and managers to undergo training regarding an employer’s obligations under the NLRA. For instance, an employer’s persistent failure to produce relevant requested information could result in such a remedy.
Just one week after issuing GC 21-06, GC Abruzzo issued a second memo providing guidance to Regional Offices regarding remedies to seek in settlement agreements. In addition to the remedies discussed in the earlier memo, GC Abruzzo recommended numerous remedies that Regions should include in any settlement agreement:
- More Consequential Damages: These would include compensation for a fired employee’s early withdrawals from investment or retirement accounts, for damages caused to the employee’s credit rating following an unlawful termination, and expenses related to coursework or training to obtain certifications, clearances, or professional licenses that were lost as a result of an employer’s unfair labor practice. In addition, Regions will likely see moving expenses for fired employees who had to relocate, as well as medical expenses for employees who lost access to health insurance.
- Letters of Apology: You read that correctly. Where a settlement requires an employer to make an offer of reinstatement, Regions are being directed to seek letters of apology from the employer to the fired employee. GC Abruzzo posits that such a letter may serve to “de-escalat[e] lingering tensions” between the parties. It may also serve to undermine settlement discussions entirely.
- “No Less than 100% of Back Pay and Benefits Owed”: It is not unusual for a Regional Office to accept 80% of the back pay owed to the employee – and, in some cases, even less. No more, says GC Abruzzo. Regions are directed to demand 100% of the back pay and benefits owed. If that was not enough, in cases where an employee does not wish to return to work, Regions will seek front pay.
- Sponsorship of Work Authorizations for Immigrant Workers: Where a Region concludes an employer’s unfair labor practice has resulted in an immigrant worker to lose their work authorizations, Regions will seek that the employer, at its own expense, sponsor the employee’s work authorization, including payment of any fees associated with the employee’s non-immigrant visa, and reimbursement for application and legal fees.
- Other Non-Economic Relief: Such relief would include permitting an employee who is not reinstated to use the employer’s outplacement services. Other examples include neutral references and agreements not to contest a former employee’s unemployment benefits claim.
- (Non) Admissions Clauses: Most employers will insist on the inclusion of a non-admission clause in any settlement agreement. In effect, such a clause states that the employer is not admitting to violating the NLRA. GC Abruzzo reminds Regions that such clauses should be used sparingly and only where “special circumstances” warrant its inclusion. Where an employer is a “repeat violator,” the GC directs Regions to include admission clauses where the employer specifically admits its unlawful conduct (in addition to doing so in the Notice to Employees).
- Default Language: In 2011, the GC’s office began a push to include language in all settlement agreements stating that if the charged party defaults on its obligations under the settlement agreement, all complaint allegations will be deemed admitted. Such language appeared in settlements less frequently following former GC Peter Robb’s directive that the language was no longer mandatory in settlement agreements. GC Abruzzo seemingly will renew the push to require default language in all settlement agreements.
The NLRB is often derided as a forum with ineffective remedies for employees. It is clear that GC Abruzzo wants the agency to shed that reputation, and she will seek stiff remedies against employers that Regions have concluded violated the Act. It remains to be seen which of these remedies will be incorporated by the Board in its orders. But employers that wish to avoid the costs of litigation by entering into a settlement agreement can expect Regional Offices to seek many of these remedies in connection with settlement.